LibGuides: Products liability by Tiffany Funk: Expert Testimony

The "Frye" Standard

Frye v. U.S., 421 U.S. 542 (1975)

Scientific evidence admitted only when the scientific principle or technique is generally accepted in the relevant scientific community. This is known as the General Acceptance Test.
This common law rule was rejected by Daubert. As such, the Daubert test MUST BE USED IN ALL FEDERAL COURTS.
State courts are free to follow the Frye standard, the Daubert standard, or some type of version. Florida, for example, still follows the Frye test of general acceptance. However, recent decisions suggest Florida may move from the Frye standard to a version of the Daubert standard.

The "Daubert" Standard

Daubert Standard

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

Daubert rejected the Frye standard for federal courts.
State courts, however, are free to use Frye or Daubert or some type of version.
The Daubert test must be used for any admissibility of expert evidence
Federal Judge acts as the "gatekeeper," and is permitted to act with broad discretion as to admittance of evidence

Will hold what is commonly known as a "Daubert" hearing to determine whether 1) one is recognized as an expert 2) whether the testimony will reach the jury

What Is the Daubert Standard?

Daubert rejected the Frye standard of general acceptance in favor of a 3-prong test using Federal Rules of Evidence 702 [Expert Testimony] and Federal Rules of Evidence 401-403.

1) The evidence must present valid ("reliable") science;

5 factors for reliability [this is not an exhaustive list of factors and no factor has more weight over another]

1) Can theory/technique be tested;
2) Has it been subjected to Peer Review or Publication [meaning a test or theory has been analyzed, discussed, or checked out by other experts in the field];
3) Known potential rate of error in using a particular scientific technique and the standards controlling the techniques operation;
4) Presence/absence of standards; and
5) General acceptance in the scientific community (incorporates Frye)

2) The science must be pertinent, meaning it must fit in the sense of relating directly to the issues and facts so it can truly be helpful to the trier of fact (relevancy);
3) The evidence may be excluded under Federal Rule of Evidence 403, even if it satisfies the first 2 prongs, if it seems likely to confuse or mislead the jury

These questions are for the judge to decide under Federal Rule of Evidence 104(a), rather than for the jury under 104(b)

Below is a link to a website called, Daubert on the web. This website contains the Daubert opinion, information on the worldview of Daubert, over 800 appellate decisions, Daubert tactics, procedure to resolve Daubert challenges, selected state decisions, and links to helpful resources such as, the Federal Rules of Evidence, Federal Rules of Civil Procedure, and Federal Rules of Criminal Procedure.